Contracts II, Pages 695–702

Frigaliment Importing Co. v. B.N.S. International Sales Corp.

United States District Court for the Southern District of New York, 1960

Facts:

Plaintiff bought 175,000 lbs. of chicken from defendant, but found that the 125,000 lbs. of it that comprised 2½–3 lb. chickens was older stewing chicken or "fowl," not the young chicken for broiling that plaintiff needed.

Issue:

What age of chicken is referred to be the word "chicken"?

Plaintiff's Arguments:

  • The smaller 1½–2 lbs. chicken that plaintiff ordered had to be young since older chickens would necessarily grow larger. Therefore, if "chicken" then meant young chicken, then it must mean young chicken for the larger chickens as well.

  • While the parties' discussions where mostly in German, they used the English word "chicken" specifically because it meant young chickens, as the German word, "huhn", includes both types.

  • Within trade circles, "chicken" usually means a young chicken, as evidenced by expert testimony.

Defendant's Arguments:

  • The contract did not just say "chicken," but "US Fresh Frozen Chicken, Grade A, Government Inspected." The Department of Agriculture regulation referenced defines several classes of chicken, including both broilers and stewing chicken in this list.

  • When asked what kind of chicken, plaintiff's representative said said "any kind of chickens," and affirmed that "huhn" is what he meant.

  • Defendant is new at trading chickens, so they were not aware of the trade usage and therefore the common use applies.

    Note:

    UCC § 1-303 treats this differently.

  • People in the trade, such as the expert witnesses, also still usually specify the type because it is not that ubiquitous.

  • After plaintiff complained in the first order, defendant specified that they were selling that the larger ones were just chickens, and that the smaller were broilers. Defendant then said to ship what they had agreed to order.

Reasoning:

Defendant believed it could comply with the contracts by delivering 2½–3 lbs. stewing chickens. The dictionary and Department of Agriculture meanings agree with this.

Rule/Holding:

In common usage, as defendant understood the word, "chicken" can mean a chicken of any age or purpose.

Judgment:

Dismissed with costs.

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